IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

	DOCKET NUMBER:  AR20110006315 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his under other than honorable conditions discharge be upgraded to general. 

2.  The applicant states he wants to reenlist in the Army.  He made mistakes and wants to change the things he can.  He regrets the choices he made when he was younger and how he left the Army.  He has a wife and children now and he wants them to be proud of him.  He attends school part-time and works hard.  He wants his family to know it is never too late to live your dream.  Further, he contends he has not been in trouble in a number of years.  He is much older and wiser now and he would never do anything to jeopardize his Army career or disgrace his family's name.  It would be his honor to serve in the U.S. Army.

3.  The applicant provides a personal statement and a letter of support.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 


substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 3 October 1990.  He completed his initial entry training and he was awarded military occupational specialty 71L (Administrative Specialist).  

3.  The specific facts and circumstances surrounding the applicant’s active duty discharge processing are not available for review. 

4.  On 16 January 1992, his immediate commander requested that the Bremerhaven Legal Services Center initiate a separation packet/action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for commission of a serious offense.  The specific reasons for the proposed separation action were listed as:

* assault, consummated by a battery on 8 August, 9 November, and 
27 December 1991
* Article 15, dated 8 October 1991
* Vacation of Article 15, dated 12 November 1991

5.  His commander indicated the applicant's actions were too violent when he drank and he refused to attend his Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Track II sessions.  Further, he did not show improvement from counseling and did not take accountability for his actions.  Other derogatory data included a Military Police Blotter, dated 27 December 1991, for assault consummated by a battery and being drunk and disorderly.  His commander recommended the applicant receive an other than honorable conditions discharge.  

6.  The same request for legal assistance shows the applicant was placed in Track II on 12 August 1991 to attend weekly counseling sessions to help stop drinking.  However, it was concluded that he demonstrated no potential for useful service under conditions of full mobilization because he lacked the responsibility to account for his actions and became violent and lost control of his temper when he drank.

7.  On 1 April 1992, he was notified to appear before an administrative separation board to determine whether he should be discharged under the provisions of 


Army Regulation 635-200, paragraph 14-12c, by reason of misconduct for commission of a serious offense.  

8.  On 21 April 1992, he appeared before the administrative separation board.  The board recommended that he be discharged from the service due to commission of a serious offense under the provisions of paragraph 14-12c, Army Regulation 635-200 with the issuance of an other than honorable conditions discharge 

9.  The separation authority approved the board's findings and recommendations on 24 April 1992. 

10.  On 5 May 1992, he was discharged.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct for commission of a serious offense with an under other than honorable conditions characterization of service.  He had completed 1 year, 7 months, and 6 days of creditable active service.  

11.  There is no evidence to show he applied to the Army Discharge Review Board within its established 15-year statute of limitations for a discharge upgrade.

12.  The applicant provides a letter of support which summarily states the applicant is very involved with his children's education.  He and his family have faced many financial and medical challenges but he has maintained a positive attitude and overcome them all.  Upgrading his discharge would allow him to reenlist and have a career that he would be proud of. 

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When 


authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

15.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  The maximum punishment for assault consummated by battery was a bad conduct discharge and confinement for 6 months.
DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he displayed a pattern of misconduct which included an Article 15, unsuccessful completion of his treatment in the Track II Alcohol and Drug Rehabilitation Program, and assault consummated by a battery.  His commander stated the applicant refused to attend his Track II sessions and he was violent when he drank.

2.  The evidence shows the applicant's company commander initiated separation action against him for assault consummated by a battery, an Article 15, and vacation of the Article 15.  The offense of assault consummated by battery is a violation of the UCMJ with a maximum punishment under the Manual for Courts-Martial of a bad conduct discharge and confinement up to 6 years.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge he was issued was appropriate considering his record of service and the misconduct for which he was discharged. 
Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 


are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110006315





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ABCMR Record of Proceedings (cont)                                         AR20110006315



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